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Designing Dispute Resolution Systems

Peter Woodrow

Partner and Program Manager, CDR Associates

This rough transcript provides a text alternative to audio. We apologize for occasional errors and unintelligible sections (which are marked with ???).

Q: We're talking about East Timor, and something that occurred to me while you were talking is that in Sri Lanka, when Chris went in there, there was a very clear example of what went wrong, what flopped, right? So you had this model to be like, well maybe we need to improve this section or this section or this section. East Timor, you went in and I'm sure you'll correct my interpretation, but it sounded like you went in there, presented this model, and then they adapted it to whatever they were doing. It wasn't necessarily that you were searching for, you know, East Timorese appropriateness and sort of trying to come up with this new model.

A: Well, yes and no. I mean, when I said Chris did the dispute systems design work the first two days with them, essentially that meant Chris was posing a series of questions to them. Based on our understanding and having done a lot of dispute systems work elsewhere, including the Sri Lankan example, but also in the Philippines, in Indonesia, in South Africa, and in various places in the United States. So we sort of know the questions to ask. We don't know the answers. They've got to come up with the answers. So the process was that Chris would maybe present an overall conceptual frame for dispute system, and then pose a series of questions, and they would then be responding and working in small groups, and running off and thinking with each other, and then coming back and sharing in the full group. It's a much more interactive, participatory process. So Chris wasn't presenting an idealized model, because every mediation process has a similar set of processes and variables. How they look in each setting is going to be somewhat different. But, for instance, you have to have some way to get parties to the table.

So what is the intake process? Well, that's going to look really different from Case A to Case B. But still, there has to be some way to develop a case. You have to have some way to decide whether that case is appropriate for mediation. Well, in some settings the criteria for selection may be different from another case, but there's still criteria for selection. Who the mediator is may be quite different in each case, but it's a mediator. So that recruitment and identification of appropriate people is still a mechanism that has to be fulfilled, but the answer to it in each case will be different. You see how the questions are the same, but then how they decide the answer is what varies. So Chris didn't present an idealized model of what mediation should look like. What he did was pose a series of questions about how they want it to work. Then, in order to get their thinking going, he might also say, well in Sri Lanka they do it this way, in the Philippines they do it that way, and in our neighborhood mediation thing in the US we do it this way. So which model is going to be most appropriate for you. Just to get them to think about the different alternatives.

Q: Like, I'm more comfortable with this idea than I am with that idea, so that gives you sort of an approach.

A: Is it single mediator, co-mediator, you know, public, private, confidential? Those all have to be determined, and in each case it would have to be asked. And you can give them a range of possibilities, and they can say, yeah, I think your Example B is probably closer to what would work here. Because they know their culture, they know their context. Now sometimes it's hard to tell, so then you just have to say, well, let's try it this way, but give us some flexibility and we'll do a pilot and then we'll adapt in various cases. Now, the other piece of this is that what we're doing for East Timor is just land and property disputes. They still don't have courts and judges and things for all the small crimes and other civil claims. So we've been talking with them about extending this to a broader set of disputes. And there we're thinking that it's going to be important to understand much more clearly what the cultural norms are around dispute resolving. And there's already a group in East Timor that's doing some, essentially, field research on the different models of dispute resolution and looking across these different ethnic groups.

There are thirteen districts within East Timor, so they're going district by district and looking even at what the variation is there because we've got 33 ethnic groups in 13 districts in a very small country. But that research will be very important for figuring out, is there a single model that we could propose for community dispute resolution, or does it need to be custom-designed absolutely for every community, which would be a real headache, or can you provide sort of a generalized model and then allow for some variability and flexibility in how the model is implemented depending on which area you're in. And I think that's more likely what will happen. You say, well, generally it's going to look like this. You could vary who the mediator is or you could vary whether it's confidential or not or you could do different things. And I also think that for urban conflicts, in towns and cities, you could get away with a single model because it's going to be multiple different language groups and cultures, and for people who come from the countryside, the normal dispute resolution processes aren't operating in the city.

One of the biggest problems is that in the village everybody knows you go to the village headman or chief, or whatever they're called, and you get the thing resolved. Or there's a council of elders, or, you know, they have some sort of process for doing that. Those all fall apart when people move to the city. It's partly why cities are dysfunctional, is because the sort of traditional cultural norms don't apply. So, my guess is that for East Timor even, for urban settings, you could posit a single model. It still has to be culturally appropriate, generally, but you wouldn't have to do all this adaptation to local conditions in the same way.